In his poem "Mending Wall," Robert Frost says that "Good fences make good neighbors." Frost's narrator displays contempt for walls erected between people, but sadly accepts the expression's truth. As a San Antonio lawyer who handles lawsuits involving homeowners associations (HOA) and disputes among neighbors, Trey Wilson has also found unfortunate wisdom in the maxim. This blog is a chronicle of one Texas attorney's observations about HOAs.

1.15.2014

San Antonio HOA Lawyer Trey Wilson wrote: From the Washington Post: By Tara Bahrampour,Published: January 11

When Brenda Batts purchased her condominium near the U Street corridor in 2006, she was planning to retire at age 65. Now 62, Batts, an office manager, fears she may not meet that goal, thanks to a nagging worry from when she purchased the unit, which assesses a monthly fee for common charges on top of her mortgage and property taxes.

“As I was filling out the papers, an annoying thought was, ‘Oh my gracious, one day your condo fees may be higher than your mortgage,’ ” said Batts, who qualified for affordable housing, allowing her to pay about half the market rate, which was then $428,000, for her one-bedroom unit.

That day is approaching faster than she expected. Her monthly fee, $166 when she moved in, has more than doubled to $371, and a special assessment for building expenses a couple of years ago cost her an additional $583. Now, with no telling how much more the fees will rise, she wonders whether she can afford to retire on schedule.

Fees associated with condos, co-ops and homeowners associations range widely, from $50 per year to thousands of dollars per month, and they often rise with inflation. But sometimes they rise more quickly, and for owners with tight budgets, the hikes can be overwhelming.

“With a condo, it’s not like a single-family house where you’re done paying your mortgage and all you have left to pay is your property taxes,” said Sarah Scruggs, director of advocacy and outreach at Manna, a nonprofit housing corporation in the District.

“In D.C., this has been a huge issue,” she said, adding that owners who qualify for lower-priced affordable-housing units in mixed-rate developments generally pay the same level of fees as market-rate owners.

“There’s nothing in the laws that says fees for an affordable resident have to be capped,” she said. “So they’re at the whim of the condo association.”

D.C. Council member Muriel Bowser (D-Ward 4) said constituents have raised the issue so much over the past couple of years that she is considering introducing legislation to address it.

“One idea that I’m exploring is to have a mediation program that would require face-to-face mediation before any action could go against a condo owner,” said Bowser, who is running to be the District’s mayor. “We really want to make sure that people don’t get priced out of their units, but we also want to make it possible for condos to be able to operate.”

In the past four decades, the number of condominiums, co-op units and houses that are part of homeowners associations has skyrocketed across the nation, from 701,000 in 1970 to 25.9 million in 2012, according to the Foundation for Community Association Research.

The foundation does not categorize ownership by age, but an analysis by AARP’s Public Policy Institute in 2003 found that 46 percent of owners in single-family homeowners associations were older than 50, as were 56 percent of condo and co-op owners.

For homeowners who are retirees or who plan to retire soon, the fee hikes can be particularly onerous, said Rodney Harrell, a senior adviser at the institute.

Adding to the burden, the number of homeowners 50 and older who own their homes free and clear fell between 2000 and 2009, according to an institute report. And in the lowest income group of people 65 and older without mortgages, 58 percent of them were spending at least a third of their income on housing.

That can create a razor-thin margin for survival when a common charge goes up, either in the form of a monthly increase or a one-time special assessment.

“These fees really pile on to these other things that are going on for folks, and because the vast majority of people want to stay in their homes as long as they can, this really becomes the straw that breaks the camel’s back,” Harrell said. “They can put someone into debt and, in the worst-case scenario, lead to foreclosure.”

For people such as Batts who qualify for affordable housing, the fees can potentially create a Catch-22 situation. She bought her condo in the 103-unit building for below market rate; there is a cap on how much she can sell it for, and she must sell it to a buyer at a similar income level. But as the condo fees rise, they may not be affordable for others at her income level.

Moreover, Batts, like most older Americans, would prefer to stay in her home.

“I love where I live — it’s accessible to everything, and I have arthritis in my knees, so I don’t know what I’ll do if the fees in the next 10 years are too much,” she said. “On the one hand, they level the playing field by having these [affordable] units, but on the other hand, if you can’t afford the condo fees and I have to move, then the program is not working.”

Tom Skiba, chief executive of the Community Associations Institute, said the issue of common charges rising too fast for owners “applies to a relatively small percentage of people living in associations, but for those to whom it applies, it’s a serious issue.”

Boards often provide multiple ways for people to pay for special assessments, including letting them pay over time, and low monthly fees can sometimes come back to haunt owners, he said.

“So many boards are under a tremendous amount of pressure” to keep fees low, with some remaining the same for five or 10 years. “That invariably means they’re not putting enough money away in a reserve account to provide for unforeseen situations,” like a boiler or roof needing replacing. “They’re shooting themselves in the foot.”

The challenge, he said, is to find a way for people who are struggling financially to remain in their homes without making their neighbors pick up the slack for building maintenance, snow plowing and other services.

Jack Calman, 66, who owns a unit in a large Silver Spring condominium development, said he has heard a lot of complaints from his neighbors about fees, especially after a special assessment for upgrades, which raised rates by 10 percent for a period of about five years.

“They mostly complain because they don’t come to meetings and they don’t know what the expenses are,” he said, noting that the development needed funds for things like a generator, roof leaks and concrete repairs.

Although he is retired, Calman said he expects to be able to meet his condo costs. “I’ve had a good career, I saved up, and I’m trying to live under Social Security and hope it’s enough.”

As for Batts, if the fees rise too much, she said she may sell the unit to her granddaughter and move to a senior citizens home.

“I would love to shelter in place, but I just don’t know what the future’s going to hold,” she said. “I guess it’s my hope that, God willing, the crick don’t rise, as my great-grandmother used to say.”

12.15.2013

The Fourth Court of Appeals in San Antonio, has twice ruled against the Sundance at Stone Oak Association, Inc. (the "HOA") in its bid to prevent the extension of Hardy Oak Road across the HOA’s property. [Author's Note: Hardy Oak Rd. is a major roadway in the Stone Oak master-planned subdivision, which abruptly (and somewhat frustratingly) dead-ends at points between E. Sonterra Blvd. and Knight's Cross, and again between Knight's Cross and Stone Oak Pkwy.].

The trial court had determined that, notwithstanding claims by the HOA that construction was
altering the natural drainage patterns of surface waters (which would ultimately render a portion
of the HOA property unusable), a 1986 easement filed by the subdivision developer (Sitterle) provided legal authority to build the extension of the road. The Court of Appeals affirmed this determination, in an appeal filed by the Association on September 21, 2012.

In the lawsuit, the HOA argued that the rights conveyed under the 1986 easement were limited by the documents express terms, and did not allow for construction of a road. Among the HOA's claims were trespass and an unlawful taking of land based on the Hardy Oak Road extension’s construction.

The NEISD contended that Hardy Oak Road was being extended to support the flow of traffic to and
from a nearby elementary school, as well as to the surrounding residential areas. The District further argued that the express terms of the Easement authorize construction of the
Hardy Oak roadway across the HOA tract and that a roadway easement provides the right for
all uses related to the use of a roadway, which necessarily includes the construction of the roadway.

In its opinion, authored by Justice Alvarez, the Court of Appeals characterized the appeal as "simply a question of
interpreting the [1986] Easement and the rights given to each party under it." After reviewing the easement document's language, the Court held as follows:

Here, the plain language establishes the Sitterle Easement was granted for the purpose of
building the Hardy Oaks roadway. The first paragraph of the Sitterle Easement expressly grants
“a non-exclusive easement and right-of-way for . . . the 86' roadway known as ‘Hardy Oaks,’” as
well as the right to construct underground electric, sewer, and water lines. Additionally, the third
paragraph provides the grant is made “until the said easement and right-of-way shall be
permanently dedicated by Grantor to the appropriate governing governmental authority and the
said roadway known as Hardy Oaks is constructed thereon.”

We conclude that the Sitterle Easement’s grant of the 86' roadway, and the identified rights
of ingress and egress regarding pipes, cables, lines and appurtenances are consistent with the use
for “road and street” purposes. See Harris Cnty. Flood Control Dist., 591 S.W.2d at 799. NEISD’s
rights therefore include the uses necessary to carry out the purposes of the roadway, including
construction of the roadway. Accordingly, the trial court did not err in granting Appellees’ motion
for summary judgment.

Hopefully, the ruling will bring some relief to the traffic congestion plaguing Stone Oak!

6.21.2013

Randy Wallace of the Fox 26 Station reported that Meagan Schmidt of Katy, TX was told she must remove a sign from her yard that advertises The Journey Church. Schmidt, who said the church changed her life in a positive way, placed the sign in her yard to make others aware of the church and to show her support. She said she loves what the church does for her community. Her HOA, Highland Creek Village Homeowners Association, has threatened to have the court remove the sign.

Her HOA says commercial signs are prohibited in her community. The say the sign violates a bylaw about displaying commercial signs in the community's yards. Schmidt feels her rights to free speech and religious expression have been violated.

Ms. Schmidt told Fox 26 that she attended an HOA meeting to have a discussion about the sign, but the HOA leaders argued and requested she communicate through their attorneys.

She intends to leave the sign in her yard, resisting the HOA and fighting for her right to free speech. Although Ms. Schmidt is a renter in the community, the homeowner supports her right to keep the sign up. It has been reported that the homeowner has even paid fines imposed by the HOA over the sign.

Ms. Schmidt says her daughters have even been affected by the conflict. She said the HOA will not provide pool tags to use the community pool.

The HOA reported to Fox 26 that they have a history of issues with the homeowner renting to Ms. Schmidt, including failure to cut the grass, along with the current signage issue.

HOAs can & sometimes do have complete authority over what kinds of signs, if any, can legally be displayed in homeowner's yards. They can and do ban displays without violating the First Amendment if there are no state and local laws that say differently.

6.13.2013

The SunSentinel in Ft. Lauderdale, FL reported that the Association President for the French Villas Condo Association, Nancy Marquez, 58, was arrested and taken into police custody for stealing more than $148,000 from the condo association. It was reported that Marquez took the money and gambled it away. Marquez admitted that she commingled the association's money with her own and used it for gambling at the Seminole Hard Rock Hotel and Casino.

Condo board member, Paul Coffman, commented that it "made his day" when he heard about the arrest.

Mr. Coffman said that he and other board members discovered there were financial discrepancies in January 2011 when he took over as the association president of the 66 unit condo building. Mr. Coffman said, "We got the invoices and everything for the two years that she was on the board and started going through them. Some things caught our eye that just weren't right."

The board reported it to the police, who investigated the case for more than two years. It later resulted in Ms. Marquez' arrest. She was charged with grand theft and perpetrating a scheme to defraud. Records show she was released from jail on $7500 bond.

Mr. Coffman and the other board members could not discuss the missing money, not even with concerned condo residents, because of the ongoing investigation. Because of the missing money, the association's utility bills and other expenses were delinquent.

Mr. Coffman stated, "When people kept complaining, you had to bite your tongue."

The bills just kept piling up and the debt increasing. The community was threatened by utility companies to disconnect service due to nonpayment. In the midst of this, the community was ordered to do some costly updating of the building and grounds.

Marquez was the association secretary and association president for 2 years until 2010. The arrest report indicated that during that time, she controlled the association's finances, which included a debit card, accounting records and bank statements.

Fort Lauderdale attorney, Blane Carneal, an attorney who represents unit owners disputing their associations, recommends that residents should form a group and hire a CPA to investigate if they have a suspicion that something might be wrong. Mr. Carneal says that residents "need to be their own watchdog," and that they "need to know where their money is going."

Although the Pembroke Pines French Villas Association's financial debt problems are not fully resolved, they're catching up and the situation is improving.

6.03.2013

Justin Bieber's neighbors are fed up with him and are banding together to force the homeowners association in their gated community to do something about the singer's reckless behavior ... by hitting them in the wallet ... TMZ has learned.

Neighborhood sources tell TMZ ... several of the residents of Bieber's Calabasas neighborhood are tired of waiting for their HOA to take action against Bieber ... so they are planning to withhold their monthly dues until something is done.We're told about 500 residents pay $1,000/month, so it's a huge chunk o' change that could be withheld.The goal, according to our sources, is to force the HOA to give Justin a stern reminder about the neighborhood rules he's allegedly broken repeatedly -- such as noise during parties (some while Justin was out of town), Justin's friends parking on the street overnight ... and, of course, the speeding.Any HOA action would be a far cry from Bieber getting arrested or charged by the D.A. -- but we're told the protesting residents will take what they can get at this point.We called ex-NFL star Keyshawn Johnson to see if he's joined the cause -- since he actually confronted Bieber last week about the speeding -- but haven't heard back yet.

5.29.2013

Rene Stutzman of the Orlando Sentinel, reported recently that Trayvon Martin's parents have settled with the Sanford Subdivision HOA in a Wrongful Death Claim. It was believed to have settled for an excess of $1 million, although the exact settlement amount is unknown. The Martins' attorney filed at the Seminole County Courthouse in Florida. The portion of the paperwork that was made public states that the settlement amount would be kept confidential and the settlement amount was marked out.

As reported by Cindy George of The Houston Advocate, HOA's and residents of the communities they manage can be disagreeable and destructive. Ms. George reported that The Forrest Lake Townhouse Association sued homeowner, Billy B. Martin, over a flagpole on a cantilever on his porch. Houston police had to intervene to resolve the conflict.

Mr. Martin claimed he was targeted by the HOA because of a recent complaint he made about a tattered flag at the clubhouse. He said that after that incident and after it was replaced, he was told he must remove his flag or risk a $200 per day fine for attorney and civil damages, because it was "infringing on the common area." Mr. Martin disagreed with the HOA's assessment and refused to remove the display. The HOA sought a permanent injunction in December. At that point, Mr. Martin began displaying his flag upside down in protest.

The lawsuit claims that the pole is "a violation of the general scheme and plan for the development and building in the subdivision," and that his "actions are intentional and/or negligent invasions" into the property owned by the HOA & its members. The petition also claims that the display "substantially interferes with their use and enjoyment of the land and it is unreasonable under the circumstances."

5.24.2013

David Moore, who lives in NW San Antonio, is being sued by his HOA for $200,000 plus attorneys fees for what he calls "ridiculous" violations. He said this is the 1st time he's had any issues with the Huntington Place HOA since moving into the community almost 18 years ago. He stated that this began about 2 years ago when the HOA began enforcing the HOA rules, but to an unreasonable extreme.

Mr. Moore has reportedly been cited for not cutting his grass frequently enough, for having a small pet door built in to his garage (which has been there for 17 years), and other violations. The HOA claims the small cat door diminishes property values.

Mr. Moore placed a sign in his yard advising passers by and neighbors so that everyone will know what the HOA is doing and of the "ridiculous" penalties being imposed. KENS 5 reporters reached out to neighbors about the sign and they responded that they're happy with it. They state that they're proud of Mr. Moore for placing the sign and for fighting back. They stated that they agree that the HOA has gone too far.

A bill aimed at making nonprofit homeowners associations more financially accountable and transparent pitted homeowner activists against people representing for-profit HOA contractors on Tuesday.

House Bill 3803, by state Rep. Ruth Jones McClendon, D-San Antonio, would require homeowners associations, which have government-like powers to levy assessments and foreclose on homes, to better safeguard the money they collect for the common good of the neighborhood.

And it would for the first time introduce state oversight of HOAs — an elusive goal of Texas homeowner activist groups. The legislation would allow the attorney general to investigate breaches of fiduciary responsibility by board members and levy penalties of up to $20,000 per violation. That would go up to $250,000 if the violation was intended to harm an elderly Texan.

“All we’re trying to do is to get them to pay attention to what they’re doing with other people’s money,” McClendon said.

Homeowner Xina Togba said the association in her Lakeville subdivision in Katy could use a little state oversight. Under current law, homeowners who have beef with their HOA have little legal recourse other than filing a lawsuit, which can be expensive and daunting. Togba told the committee that her board has towed hundreds of vehicles without proper notice, saying many of the cars were removed from public streets and even homeowners’ driveways. She also complained that the board has been secretive about its meetings and has been dragging its feet on providing basic financial information.

She said the management company that runs the Lakeville Community Association, SCS Management, has refused to even provide a copy of its contract with Lakeville.

“We have no strategy other than to be loud and speak up,” she said.
A voicemail left for SCS Management was not immediately returned; a message left on Lakeville's website was not immediately returned, either.

McClendon’s bill ran into fierce opposition from the HOA lobby, including the industry's main advocacy group in the state, the Texas Community Association Advocates, or TCAA. The industry critics say the legislation is unworkable and punitive to the voluntary board members who run them. TCAA represents HOA boards and members and the interests of for-profit contractors, such as HOA management companies and foreclosure lawyers, at the Texas Capitol.

Dallas HOA attorney Judd Austin, a TCAA board member, said the legislation would have a “chilling effect on the volunteer spirit of the communities,’’ telling the House Business and Industry Committee that the board could handle its own financial affairs without additional state regulations.
Besides the AG oversight, the bill would require board members to have surety bonds and get insurance providing coverage for the risk of fraud and dishonest acts.

Embezzlement and fraud cases have left some homeowners associations in dire financial shape. Prosecutors say that in the Houston area last year, for example, one property manager hired to run several associations in Fort Bend County stole more than $2 million, according to a report on KTRK-TV, Channel 13. And in Nevada, federal prosecutors have charged dozens of people in a far-reaching conspiracy to take over homeowners associations and direct millions in contracting dollars to themselves in a massive corruption scheme.

Andrew Fortin, vice president for governmental affairs at the giant HOA management company Associa of Dallas, said the goals of McClendon’s bill are laudable. But he expressed opposition to it and said he is working with her office to to improve it.

“We think that there are things that can be done on this,” Fortin said. “We don’t think that the current bill captures the experience that other state have had in addressing issues of protecting financial assets of the community and ensuring our boards are accountable.”

Homeowner activist Harvella Jones, president of the National Homeowners Advocate Group, said the fiercest opposition is coming from companies that are profiting from HOA dues money.
“It’s created a money making industry for a lot of the special interest groups,” Jones said. “These are our homes. … We need something to protect the money.”

This is one in a series of occasional stories about ethics and transparency in the part-time Texas Legislature. It was produced in partnership with Texas Monthly and appears in print in the June issue of the magazine. The Brookfield subdivision in Pflugerville, north of Austin, lies two miles from Interstate 35 in a bland patch of suburban sprawl, the kind that sprouts like clover on the edge of cities. Cookie-cutter homes line winding streets with tea-themed names like Earl Grey Lane and Darjeeling Drive. Two playgrounds, erected in the middle of circular intersections, fill with children when school lets out. In the summer a fenced-in swimming pool — for Brookfield residents only — provides a break from the punishing Texas heat.

Shawn Riggs lives on Sally Lunn Way in a beige two-story house that he bought for $137,559 in 2003. Like all his neighbors — and a growing number of people across the state — Riggs belongs to a homeowners’ association, which charges monthly or annual fees to care for common areas, enforce deed restrictions and, at least in theory, maintain property values. One day this past February, Riggs went to the post office to retrieve a certified letter. He had been in a long-running spat with the Brookfield Owners Association over some mistaken fines levied against him for not taking care of his lawn. Riggs believed the letter would contain good news. For almost two years he’d been waiting for the property managers to acknowledge what he’d been saying since he’d received a nasty little notice warning him to cut his grass or else: They had gotten the wrong yard.

As Riggs had explained, it was his neighbor’s house that had been pictured in the notice he had received in June 2011. So he printed out images from Google Maps to prove it. He had emails documenting his increasingly vociferous objections. He had even received a response from the property managers saying his protests had been “noted” in his file.

None of that was in the letter, though. Instead, typed in capital letters across the top of the page were the words “CITATION — FORECLOSURE.” Riggs, a trim 39-year-old technician at a semiconductor equipment plant, felt like his chest was going to pop open. Over time, $50 in disputed fines had ballooned into more than $2,000. Now they were coming after his house.
I first met Riggs in mid-March, a few weeks after he received the foreclosure letter. By then he had decided to fight back, even if it meant it would cost him more to sue than to settle. He wasn’t going to let the Brookfield Owners Association shake him down. “Your HOA should not have that much power,” he told me.

And yet, in many cases, an HOA does have that much power. According to estimates by the Community Associations Institute, the industry’s chief lobbying group, almost a fifth of the U.S. population — including 3.4 million Texans — now live in a residence that is managed by some type of property owners’ association. These associations, ostensibly created by and for the people in a neighborhood, usually operate more like mini-government agencies, assuming responsibility for duties that cities and counties typically perform: maintaining the parks and pools, providing utilities, repairing streets and in some cases enforcing the speed limit. Which is exactly why there are so many of them; nowadays, cities and counties often require new developments to create property owners’ associations. In a booming state like Texas — and especially in suburbs like Pflugerville, which is one of the fastest-growing places in the country — outsourcing these services to an HOA management company may be the only option for a cash-strapped municipality.

Not surprisingly, HOAs have become a big business. They generate $40 billion in annual assessment revenue (the dues collected from individual homeowners) and $35 billion in reserves, representing a huge government-like contracting opportunity — only without all the procurement safeguards and transparency guarantees expected of taxpayer-supported entities. The largest HOA management company in the country is Dallas-based Associations Inc., better known as Associa. It oversees Riggs’ HOA, along with 9,000 others in 31 states, as well as Mexico and Canada. Over the past 34 years, the company has been transformed from a small business into an industry behemoth by its founder, John Carona.

But the Dallas millionaire isn’t just the president and CEO of Associa. He’s also a powerful state senator who chairs the Committee on Business and Commerce and who, back in 2001, authored the law that enshrined pro-industry HOA foreclosure practices in statute, ensuring that associations like Brookfield’s could continue to aggressively collect fees and dues from homeowners. And if you’re flabbergasted by that fact, well, you don’t know much about Texas politics.
Texas, as any seventh grader can tell you, has a part-time Legislature whose members typically have full-time jobs in the private sector. The framers of the state constitution wanted it this way because they were suspicious of centralized government and saw a citizen legislature as a chief antidote. That belief still holds strong. Successive generations of Texans have insisted that their legislators, now paid $7,200 a year in salary, meet in regular session for only 140 days every other year and then return home to work in the communities they represent. But while that may limit the power of the state government, it also blurs the line between public responsibilities and private interests. And thanks to weak disclosure rules, voters are often clueless about the conflicts of interest that result.

At the Capitol, lawmakers rarely recuse themselves from legislation that has an impact on their livelihoods for one simple reason: They don’t have to. They are asked to step away from the action only if it directly affects their own company. So insurance agents can pass bills for the whole industry, and pharmacists can carry drug bills that cover other pharmacists. But when it comes to a lawmaker being so closely tied to his industry, perhaps no one is as prominent as John Carona.

*****

Mandatory HOAs took off in the early 1970s as entire neighborhoods sprang up from old cotton fields and pastures in suburban areas. Today, an incredible four out of every five new homes in metropolitan areas are built in association-ruled communities. In Texas, whose population is growing at about 3 percent a year, people buying new homes are more and more likely to settle in places like Las Colinas, New Territory or Circle C Ranch than in urban Dallas, Houston or Austin.

Typically homeowners have very little interaction with their HOAs: They pay their annual fee (Riggs’ is $336, though other associations’ can reach far beyond that), and they don’t give much thought to the work that goes on behind the scenes to maintain the neighborhood. Unless HOAs are ruled by power-drunk board members or nickel-and-diming management companies, most residents are pleased with them — and don’t have to worry that their neighbor will paint his house pink or leave a rusty car on blocks out in the front yard.

From time to time, however, abuses by HOAs grab the spotlight. Like when Jim Greenwood of Frisco was told in 2009 that he could park a Cadillac Escalade but not his Ford F-150 pickup in his driveway. Or when Michael Clauer, also from Frisco, had his home foreclosed on by his HOA in 2008 while serving in Iraq. Then there was the case of 82-year-old Wenonah Blevins, a Houston widow whose home got auctioned off for $5,000 in 2001 to satisfy an HOA assessment debt of $814.50.

HOA executives like Carona often say people choose where to live, and if they don’t like HOAs, they can move to a neighborhood that doesn’t have one. The fact is, HOAs are getting harder and harder to avoid. In developments like Brookfield, everyone has to join and pay their dues. That’s the norm these days. Moreover, a homeowner with an HOA may find himself locked into a web of services he has little choice but to accept.

What Carona figured out with his first association is still true today: HOAs are a low-margin business — the grocery stores of property management. The real money comes with volume, economies of scale and add-on services. That’s why Associa sits atop an ever-expanding pyramid of companies that Carona has created to cash in on all the ancillary services his HOA clients need: an insurance agency selling liability and property casualty policies, a document-production company that provides the records needed when homes are bought or sold, a 24-hour maintenance service for house repairs and upgrades and a collections company that targets delinquent homeowners.

Technically speaking, only residents are allowed to run neighborhood associations, by serving on volunteer boards of directors, but that’s true only in the purest of legal terms. As a practical matter, management companies run the day-to-day operations for the boards. They enforce the deed restrictions, interact with the homeowners, operate the websites, hire the contractors (which may be a subsidiary of the management company) and, most important, control the money.

“Everybody always professes that the board of directors is responsible for all affairs, but the reality is, the management company has tremendous influence,” said Mike Parades, a former HOA management company owner who teaches best HOA practices at the Community Associations Institute. “If they have the management contract, for all intents and purposes they are the ones who are calling the shots.”
If there’s any confusion about who the gatekeeper is at Brookfield, Associa clears it up for homeowners on the association website: “Your Board of Directors can only be reached through your Community Manager.” I tried to get answers about Riggs’ foreclosure case from Associa, which is known in Central Texas as Alliance Association Management. But it deferred to the Brookfield board. When I got Brookfield president Brooks Rowell on the phone, he called himself a “volunteer” and then hung up on me. In a subsequent call, he told me that if I had any questions about Riggs’ case or Associa, I should contact his attorney in San Antonio. So I tried that too. The answer? No comment.
Riggs didn’t have anything against HOAs when he moved into Brookfield. He had had a good experience with a tiny one in San Antonio, where he knew his neighbors and the management company didn’t send people out in golf carts looking for violations or mail out computer-generated notices.

It’s these types of violations that lead to most of the grievances against HOAs. Taking down a tree without approval, even a dead one, can get you in serious trouble in some association-ruled neighborhoods. So can staining your fence the wrong color. One Associa-managed HOA in California even fines its residents for the transgressions of others. If a pizza delivery boy gets caught speeding on his way to your home in Sun City Shadow Hills, he doesn’t get the $50 ticket — you do.
There’s also the “priority of payments” scheme, which allows HOAs to take the dues they collect from homeowners and redirect them to pay any outstanding fines, attorneys’ fees and “administrative” charges that the HOAs tack on for themselves. In that situation, dues generally come dead last, and homeowners inevitably fall further and further behind in their accounts. That, in turn, triggers another round of penalties, which results in additional fees. This is precisely what happened to Riggs: He continued to pay his dues, but they were being directed to his fines instead of his principal balance. In short order, a measly little fine became a financial headache, and he was faced with two bad choices: fork over the money or face expensive legal bills and uncertain odds in court.

How is any of this legal, you might ask? Start with Senate Bill 507, Carona’s bill from the 2001 session. It guaranteed that the HOA industry could keep wielding its foreclosure powers over homeowners — with no oversight from any state agency or elected official.

*****

Texas has a long and colorful history of lopsided special-interest influence. LBJ biographer Robert Caro, writing about the legislatures of the early 1900’s in his book Path to Power, found that lobbyists “dispensed ‘beefsteak, bourbon and blondes’ so liberally that some descriptions of turn-of-the-century legislative sessions read like descriptions of one long orgy.” In some cases, lobbyists could even be found casting votes on the floor in the place of absent lawmakers.

Occasionally the behavior has gotten the attention of law enforcement, as it did during the Sharpstown scandal of the early 1970s, when politicians were accused of passing favorable banking regulations in exchange for quick stock profits. Twenty years later House Speaker Gib Lewis, a Democrat from Fort Worth who was constantly hounded for his cozy ties with special-interest lobbyists, pleaded no contest to two misdemeanor violations after being accused of accepting an illegal gift. He left office at the next available opportunity.

The Texas Ethics Commission was created in the early 1990s to fix that culture. But it’s been called a paper tiger because lawmakers intentionally restricted it from biting them too hard — and the ethics laws were weak to begin with anyway. Despite Lewis’ problems, no one accused him of doing anything illegal when he stocked his ranches with wild game and fish at state expense, courtesy of Texas Parks and Wildlife. That’s because it wasn’t.

In the current Legislature, those kinds of breaches have become increasingly rare, but there are still gray areas. In the 2011 legislative session, Houston Republican Gary Elkins earned infamy for his objections on the House floor to new legislation that would regulate the payday lending industry. His occupation? Payday lender.

Today the longest-serving member of the Texas Senate, Democrat John Whitmire, of Houston, works for the government affairs section of a law firm that represents special interests seeking favors from the Legislature. The senator says his paycheck, which, incidentally, he doesn’t have to disclose, has nothing to do with his senatorial duties. With the blessing of the Ethics Commission, the senator, known as Boogie, is also tapping his fat campaign account — the largest among legislators — to enjoy perks such as nearly $300,000 worth of tickets to sporting events in the name of “constituent entertainment” and an $80,000 BMW 650i.

Stick around long enough and the ridiculously low state salaries for lawmakers don’t seem so unreasonable. Longtime Sen. Rodney Ellis, a Democrat from Houston who has made a lot of money (and faced some criticism) underwriting bonds for local government agencies, loves to tell people why he will never trade his Texas gig for one in Washington, D.C., where the elected representatives make $174,000 a year but are heavily restricted on outside work. “I can’t afford the pay cut,” he says.
When one of the most basic elements of transparency — a legislator’s income — often remains cloaked in secrecy, how can voters have faith in the process? For example, Sen. Judith Zaffirini, a Democrat from Laredo, simply checks the “self-employed” box and lists her occupation as “communications consultant” on her annual personal financial statement. Nowhere does it say that one of her clients is Carona’s very own Associa. Neither Zaffirini nor Carona will say how much she’s being paid or for how long. The beauty for them is that they don’t have to — and probably never will, since proposals for even the barest improvements, such as publishing the personal financial statements online, are about as popular as special sessions in the Legislature.

But even among these lawmakers, Carona stands out. By his own estimation, Associa employs 8,800 people and remains the largest and most active business operated by a member of the Legislature. Given the nature of his business, Carona has an impact on the lives of people far outside his Senate district because he sits at the top of the food chain for the 2 million or more people living under the rules of the privatized governments Associa helps operate. No other state legislator has that kind of power. He is a senator and a special-interest group rolled into one.

“He’s got to be number one in that category,” said former state Sen. Jon Lindsay, a Houston Republican. “I can’t think of anybody who serves in the Senate who has so much vested interest.”

*****

Carona was born on the Gulf Coast, near the town of Dickinson, and raised in East Dallas. By the age of 12 he was making $100 a day mowing lawns every summer — more than his stepdad, a hard-drinking butcher, made cutting meat. Democrats dominated the state the whole time he was growing up, but in 1978, the year he graduated from the University of Texas business school with a double major in real estate and insurance, a Dallas oilman named Bill Clements broke the stranglehold and became the first Republican to get elected governor since Reconstruction. Two years later, Ronald Reagan was elected president of the United States.

By then, a Dallas developer had hired Carona to manage HOAs, which were just beginning to multiply around Texas. As business took off, Carona, a free-market-loving entrepreneur, threw himself into the conservative political movement, first on behalf of others and then with his own successful candidacy for the state House of Representatives, in 1990, when he was 34 years old. Six years later he ran for the Texas Senate, and he’s been there ever since.

Politically, he has the qualities you’d expect from a tough, ambitious self-made man. At a time when most politicians live in fear of their party’s activist fringe, Carona seems to gleefully confront it. On issue after issue, he’s proved himself to be a maverick willing to buck his own party on everything from gay rights to higher gas taxes. But he also has a reputation for jealously protecting his company’s bottom line and the interests of the big-business lobby in general.

He’s known to have a volcanic temper too. Just ask Sen. Royce West, a Democrat from Dallas who was the recipient of a notorious finger jab from Carona on the floor of the Senate in 2001. Or Sen. Dan Patrick, a Republican from Houston who found himself on the business end of a Carona tirade over a minor legislative disagreement. Carona, who is proud of his Italian heritage and has been known to make Godfather references, later wrapped a toy horse head in a blanket and put it on Patrick’s desk on the floor of the Senate. (In a bitter email exchange in May 2012 Carona suggested that there were rumors that Patrick is gay. The religious conservative and radio talk show host called the attack a false and “repulsive” smear and demanded an apology, which was not provided.)

These qualities were in evidence during the fight over SB 507 in 2001. The legislation didn’t just tweak existing laws. It created a brand-new section of the Texas Property Code that dealt with HOA powers and duties, everything from the way foreclosures and liens are handled to record-keeping and management. Carona says his carrying the bill did not violate any ethical rules pertaining to conflicts of interest — rules he acknowledges are “loose.” To the contrary, he insists that SB 507 was a pro-consumer bill, thanks to provisions that gave homeowners the right to redeem foreclosed homes, to review certain HOA records and to receive notice when a fine has been levied against them.
“That bill was all about protecting homeowners,” Carona told me. “It truly provided all sorts of transparency and individual rights to homeowners who had been largely shut out of the process by some of these runaway boards of directors.”

Talk to the many homeowner activists and attorneys who have spent the past decade suing HOAs on behalf of people like Shawn Riggs, however, and you’ll get a different view. (Lawsuits against HOAs are common, in part because, with no state agency overseeing HOAs and no licensing requirements, homeowners have little option but to sue when they get into a dispute.) According to its critics, the law seemed to stack the deck — in the name of consumer protection — in favor of HOAs and their for-profit partners. Look no further than the language concerning the priority-of-payments practice. The bill said HOAs could not foreclose “solely” to collect fines and attorneys’ fees, but it enabled managers to redirect dues payments to cover them. So the effect was the same: Diversions technically left the dues unpaid, allowing the HOA to foreclose — even after tacking on thousands of dollars in arbitrary administrative penalties, handling charges and attorneys’ fees.

Lawmakers generally pretend their colleagues have no personal ties to the bills they sponsor, but on the night SB 507 came up for a final vote, Lindsay departed from tradition by pressing Carona to discuss how management companies like Associa operate.

“That’s not anything we’re gonna discuss on the Senate floor,” Carona replied. “We’re talking about a homeowners’ protection act here, the obligations that a homeowner has to their homeowners’ association. We’re not talking about anything else.”

Lindsay scoffed. “If this bill doesn’t have anything to do with management [companies], I’m kind of blown away by some of the correspondence I got, all from management companies,” he said. In fact, Carona’s bill referred to HOA managers repeatedly, giving them joint control over an association’s bank account, among other things.

Lindsay was so incensed about the lack of consumer protections in the bill that he vowed to stage a filibuster to kill it. Since only a few hours remained before a midnight deadline on the last day to pass substantive bills, this was not an idle threat. As the night wore on, Lindsay kept talking and talking and Carona kept getting more and more agitated. Carona implored his GOP colleague to recognize that SB 507 was at least marginally better than the messy patchwork of laws that had prompted so many complaints at the Capitol. Lindsay acknowledged that homeowners were thrown a couple of bones, but he complained about his exclusion from a hand-picked team of legislative negotiators, which naturally included the bill’s author, who had stripped off homeowner-friendly amendments in the waning days of the session.

More important, Lindsay said he was worried — prophetically, as it turned out — that the industry would use the “property rights” bill as a fig leaf to cover up the need for deep consumer protections, actual remedies and oversight. “What I’m fearful of is that taking that small step in that direction now will prevent us in two years from taking a major step in the right direction to rein them in,” Lindsay said. “Because everybody will say in two years, ‘Oh, we took care of that last session.’ ”

With the clock inching toward the midnight deadline, Carona fell into a charitable mood. He offered to advocate for new reforms if the ones he was on the verge of passing proved inadequate and in need of some amending. Finally, at about 10:20 p.m., Lindsay relented. In the aftermath, Carona looked like a new father in a maternity waiting room. “Thank you very much,” he said. Carona then pledged to work with Lindsay on HOA issues in the next legislative session, presumably as an agent of reform.
Lindsay’s response wasn’t meant for broadcast, as a review of the old videotapes makes clear. But if you crank up the volume, you can hear it. “I don’t want you carrying the goddamn bill,” he said. Carona promised he wouldn’t. Then he sent SB 507 on its way.

True to his word, Carona didn’t carry the 2003 HOA bill. In fact, because of all the conflict-of-interest criticisms he faced — unwarranted, he still believes — the Dallas senator decided he shouldn’t be directly sponsoring HOA bills anymore. But that doesn’t mean he stopped advocating for his company’s interests at the Capitol. When Lindsay fulfilled his promise in 2003 to spearhead sweeping HOA reforms — including government oversight of HOAs in big counties and a limit on management company fees, none of which the management companies liked — Associa dispatched droves of employees to Austin to testify against it, recalls Gary Stone, a former property manager for a Dallas-based Associa subsidiary.

Stone says he and other employees were told to use the names of their nonprofit neighborhood associations when they registered in opposition to Lindsay’s bill, though some did disclose their management company’s affiliation, according to committee witness records. “We went down in a big van. We were told this was very important and that if we could get away we needed to go, because Carona was against it,” said Stone.

Some of Carona’s methods were more direct. On the day Lindsay was scheduled to lay out his bill before the committee, Carona dropped by the hearing room. On a scratchy audio recording of the proceedings, an audible stir can be detected following his entrance, and an unidentified lawmaker says, “Mr. Chairman, I want it noted that Senator Carona is in the house, so all amendments and all amendments to amendments and committee substitutes, beware.” They all had a good chuckle. It was no secret that Carona didn’t like the bill and was working to scuttle it. Ultimately, he prevailed. Lindsay’s legislation died without a vote.
Over the ensuing years, Carona has continued to expand his HOA advocacy network, adapting and innovating just like he has with his business empire. In 2006, for example, the Associa brass helped create the now-defunct Communities for Fair Legislation, an innocuous-sounding group formed to lobby at the Capitol on behalf of HOA management companies, according to those who helped create it.
After that, Carona took it in-house by lining up a team of his own registered lobbyists. There are now eight in all, including several from the influential Graydon Group, whom Associa pays to watch its back and promote its agenda in Austin. A senator hiring lobbyists to influence his own colleagues?

Even in a Capitol accustomed to cozy legislator-lobbyist ties, that’s a new twist.

There are also simpler methods. In 2011 West, then the chairman of the Committee on Intergovernmental Relations, carried the most significant HOA overhaul since SB 507. West also happens to be the recipient of $73,500 in campaign cash donated since 2008 by Carona, his wife and Associa general counsel Paul Reyes. The most amazing thing about this may be Carona’s forthrightness in discussing it.
“Just as any lobbyist or any special interest would approach a legislator, our company’s interests are protected in that fashion,” Carona told me. “As a company, we have to be able to know that Senator West is somebody who will at least listen.”
It’s a little jarring to hear a senator liken himself to a special interest. Then again, it’s hard to argue with his cold-eyed calculation. One can only imagine that $70,000 endears one senator to another better than a chest-poking tirade on the Senate floor.

*****

Carona has been described as a man in constant motion, and on the March day that I interviewed him, I discovered he has a Capitol office to match. When I walked inside, one lobbyist was dropping off a bag full of snacks and three others were waiting to talk to the senator. While staffers answered phones and made small talk, a visibly antsy Elkins, the payday lender and Houston state representative, stormed in and joined us. Carona was carrying a hotly disputed bill to restrict high-interest payday lenders, and Elkins was upset about a draft of the legislation. There were no seats left, so he had to lean against the wall next to me.

When my turn came, Carona welcomed me in and hurriedly returned to the chair behind his desk. Wearing a charcoal suit and a starched monogrammed shirt, he seemed unreasonably relaxed amid the chaos. He asked me how much time I needed. A half hour? Forty-five minutes? I took the longer option, but he ended up giving me two hours.

He was unfailingly courteous, generally talkative and often surprisingly blunt. When I asked him why he once turned to Democratic trial lawyers like the late Fred Baron or John Eddie Williams for investment capital at Associa, he stated matter-of-factly, “I’m looking for people with money.”
He was less forthcoming, though, when pressed about the inner workings of his vast business empire. On that very day, a major cog in his HOA machine —Dallas-based First Associations Bank — had gotten state approval to complete its merger agreement with the publicly traded Pacific Premier Bancorp Inc., of California. The transaction provided a rare glimpse into an important piece of the senator’s otherwise privately held conglomerate. As the largest shareholder in First Associations Bank, Carona was entitled to receive approximately $8 million in cash and stock for the transaction, plus a $2,750-a-month spot on Pacific Premier’s board, according to federal disclosures. (Democratic fundraiser and lawyer Lisa Blue Baron, Fred Baron’s widow, was also listed as a major shareholder.) Carona, who has oversight authority over the Texas Department of Banking in the Legislature, insisted the deal got approved without his input or influence, but he declined to talk about what he got out of it.
Only once during our interview did Carona show any sign of his trademark anger. It happened when I asked him about reports from former Associa company employees that he sometimes treats company assets as if they were his own, whether it’s the corporate jet he uses to ferry himself between Austin and Dallas, often multiple times per week, or the leased warehouse near Love Field where he keeps his cherished vintage-car collection. “Those are issues that pertain to my business interests and my personal interests, and frankly, I think it’s out of line for a political reporter to be digging into any issue of that nature,” he said.

What Carona did reveal were his views on HOA power and the effort to dial it back, including the 2011 reforms that finally gave homeowners some of what they’d been fighting for: the elimination of quickie “non-judicial” foreclosures in single-family HOAs (though not those for condos), an enhanced right to inspect association records and better disclosure of fees.

The 2011 law, to Carona’s chagrin, also closed the priority-of-payments loophole for single-family HOAs for all transactions as of Jan. 1, 2012. Now dues have to be applied to the annual HOA fee. No more diverting to fines and other charges.

While Carona thought the reforms struck a fair balance overall, he felt pretty strongly that the ban on reapplying assessment payments eliminated a reasonable tool to force “irresponsible” homeowners to pay their tab.

“I think what we did in that one regard was not best for the associations,” he said. “The public opinion just overrode any other consideration.”

But he’s not pouting about it. Carona looks at the legislative process kind of the way he looks at business. You don’t get everything you want; you cut deals and move on. In the case of the 2011 legislation, Carona had his lobbyists on it. He made contributions to the Senate author. And on the rare occasions when West asked him what he thought about a tweak here and there, Carona said he made his opinions known. What more can a senator and CEO do?

“The only real time you ever hear us complain is if we simply didn’t get an opportunity to at least be heard,” Carona said.

Given Associa’s national reach, I asked Carona how he approaches other state legislatures, where he doesn’t have a fancy title, about HOA issues. In addition to hiring A-list lobbyists, his company runs Associa PAC, a Texas-based political action committee that doles out bipartisan campaign contributions to sympathetic lawmakers all over the nation. It shouldn’t come as a shock that legislators with influence over HOA issues, in Texas and beyond, are on the distribution list.

“We have certainly impacted the laws around the country. There’s no question we have impacted them,” Carona said. “We actually work to help pass good legislation.”

What stood out the most to me was that Carona, unlike so many of his colleagues, doesn’t pretend as though his public and professional lives never intersect. He says he hasn’t ever abused his position or violated ethics laws, but he’s up front about how he works the system for his own benefit within those very forgiving restraints.

“I feel like I have a right to protect my business interests,” he told me. “Part of my job for my clients, which are the associations and their members, is to come down here and try to stand in the way of legislation, some of which is rather impulsive.” You might call that refreshingly candid. Or fantastically tone-deaf.

In Texas, as the Godfather might say, it’s just business.

*****

Right about the time the Legislature was putting the finishing touches on those heavily negotiated HOA reforms, Shawn Riggs, who lives 23 miles from the Capitol, was getting the notices about his lawn from Carona’s management company.

Unfortunately for Riggs, the hard-fought deal on the diversions of dues came too late. His case falls under the old law, so the fees kept piling up, and the pressure to resolve it kept mounting as the stakes increased. I didn’t expect Carona to know the details of the Riggs case, of course. Riggs is but one of at least 2 million Associa homeowners. A number. But wasn’t there something the senator could do? “I would be happy to track it down and get it fixed,” he told me.

It seemed promising. Though Riggs was technically suing Brookfield and not Associa, if anyone could just make this mess go away, it was Carona. But after our interview, the Riggs case started grinding its way through the court system. Soon the Brookfield insurance company’s lawyer got involved. A settlement offer from Riggs came and went. And still no word from Associa. Pretrial sparring was just around the corner.

Then, in early May — out of the blue, it seemed to Riggs — Associa intervened and started openly pushing for closure. Riggs’ lawyer, J. Patrick Sutton, had never seen a settlement deal brought to a client by a company he had not sued, but it was an offer they couldn’t refuse.

Riggs was not able to discuss the terms of the settlement, but it gives him a fresh start with a neighborhood association he had come to loathe. For a while he was so disgusted with Brookfield that he couldn’t wait to move out. Not anymore. “Now I feel like I have a responsibility to take action,” he said. “I feel committed to my neighbors to make things better — instead of just running.” The fear of losing his home woke him up to the power of HOAs. The outcome of his lawsuit made him feel empowered to do something about it. For that, at least, he has John Carona to thank.

About Me

Trey Wilson is an attorney practicing real estate law and water law in San Antonio, Texas but maintains a Texas-wide presence. Subsets of his practice include Homeowners Association litigation, easement and land-lock litigation and evictions.
Wilson is a native San Antonian and graduate of Central Catholic High School. He holds a Bachelor of Arts degree from the University of Texas at Austin, and a Juris Doctorate from St. Mary’s School of Law.
Wilson was admitted to practice before all Texas Courts in 1997, the U.S. District Courts for the Western District of Texas in 1998, and the U.S. District Courts for the Southern District of Texas in 2010.

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